A covenant with the status quo? Male circumcision and the
new BMA guidance to doctors

Received 12 May 2004
In revised form
19 August 2004
Accepted for publication
31 August 2004

J Med Ethics
2005;31:463-469

This article offers a critique of the recently revised
BMA guidance on routine neonatal male circumcision and
seeks to challenge the assumptions underpinning the
guidance which construe this procedure as a matter of
parental choice. Our aim is to problematise continued
professional willingness to tolerate the non-therapeutic,
non-consensual excision of healthy tissue, arguing that
in this context both professional guidance and law are
uncharacteristically tolerant of risks inflicted on young
children, given the absence of clear medical benefits. By
interrogating historical medical explanations for this
practice, which continue to surface in contemporary
justifications of non-consensual male circumcision, we
demonstrate how circumcision has long existed as a
procedure in need of a justification. We conclude that it
is ethically inappropriate to subject children—male
or female—to the acknowledged risks of circumcision
and contend that there is no compelling legal authority
for the common view that male circumcision is lawful.

In recognition of the
growing controversy surrounding neonatal male circumcision,
the British Medical Association’s Medical Ethics
Committee released new guidance for doctors in 2003.1 This is the first professional
pronouncement in the UK since the General Medical
Council’s guidance in 1997.2 Upon its publication, the Journal
of Medical Ethics published the BMA’s advice along
with two, quite starkly opposing, commentaries.34 This
article offers a brief assessment of the BMA’s response
to the practice of neonatal circumcision, and suggests that
certain assumptions underpinning it need to be questioned. In
particular, we challenge the legal position represented in
the BMA guidance, arguing that the legality of the practice
is much less certain than they acknowledge.

Our focus is on the harm/benefit assessment
which lies at the heart of the male circumcision debate and
is central both to the revised guidance and to ethical debate
on the issue. Specifically, we are concerned to problematise
the continuing professional willingness to tolerate the
non-therapeutic, nonconsensual excision of healthy tissue. We
suggest that infant male circumcision is characterised by an
acceptance of levels of risk unimaginable in other health
care contexts. In seeking to account for the permissive
medicolegal attitude to this practice we argue that it is
grounded in particular understandings of the male infant
body. We see two (related) issues as central to the debates.
First, we examine how risk to the infant male body is
understood and managed within the debates, and secondly how
this informs the way in which male circumcision is
constructed in opposition to female genital modification. The
infant male body is conferred with particular qualities that
inform and limit the nature of the debate, and the way in
which law approaches it.

The guidance—an
overview
The guidance that the BMA offers is in many respects
welcome, and brings the UK position into line with recent
revisions in other common law jurisdictions.5 Thus, it stresses that circumcision is
rarely clinically indicated and that ‘‘doctors
should be aware of this and reassure parents
accordingly’’ (p. 3).1 Perhaps more importantly, it states
that non-therapeutic circumcision should be performed only
when it is demonstrably in the best interests of the child.
The responsibility to show this falls to his parents.1 Additionally, the guidance provides
principles of good practice, although most of these should
already be familiar to anyone working professionally with
children.1 Thus, they note the
paramountcy of child welfare and the need to act in the
child’s best interests; the need for consent (from
either parent where the procedure is therapeutic and from
both where the procedure is non-therapeutic—see below);
the importance of including the child in the decision making
process where possible; and the circumstances where court
referral would be appropriate. It is recognised that good
practice also demands accurate and contemporaneous record
keeping in relation to the discussion, consent, the
procedure, and aftercare given.

Yet, the BMA’s position is not
unproblematic. While reflecting shifts that have occurred in
the development of children’s rights and evidence-based
medicine, it nevertheless largely condones current practice,
so that a parental request motivated by social, cultural, or
religious justification is likely to validate non-therapeutic
male circumcision. In this article we argue that the BMA is
able to sanction such requests only because it assumes a
particular understanding of the male child’s body, an
understanding shared by law. Before exploring this, it is
worth briefly to outline the origins of non-therapeutic,
non-religious practice, and to examine the justifications for
it.

Origins
Although a full history of the emergence and subsequent
development of circumcision within medicine is beyond the
scope of this article, an outline of the evolution of the
practice offers an important context to the current debate.
The BMA guidance makes limited note of the problematic
history of medical practice in this area. It recognises, for
instance, the significant misdiagnosis and mistreatment of
phimosis, an abnormal tightening of the foreskin that limits
normal function. As the guidance notes: ‘‘Male
circumcision in cases where there is a clear clinical need is
not normally controversial. Nevertheless, normal anatomical
and physiological characteristics of the infant foreskin have
in the past been misinterpreted as being
abnormal’’ (p. 2).1
We would contend that the troubled history of medical
practice in this area merits fuller recognition.

The emergence of clinical circumcision owes much
to the work of the eminent American orthopaedic surgeon Dr
John Lewis A Sayre. Sayre’s first case involved the
treatment of a 5-year-old for partial paralysis. In 1870, and
following a number of further successful operations, he
informed his colleagues that circumcision was the answer to a
range of ailments: ‘‘Many of the cases of
irritable children, with restless sleep, and bad digestion,
which are often attributed to worms, is [sic] solely due to
the irritation of the nervous system caused by an adherent or
constricted prepuce’’ (p. 210).6 This marked the beginning of the rise
and rise of phimosis, an ill-defined and fluid
pathology,7 and the recoding of
the foreskin as pathological. Beyond the ailments of
children, circumcision came to be seen as a cure for more
problematic and elusive illnesses, as Geoffrey Miller
notes:

Within fairly short order, circumcision
was promoted as a remedy for alcoholism, epilepsy, asthma,
gout, rheumatism, curvature of the spine and headache
… paralysis, malnutrition, night terrors, and
clubfoot; eczema, convulsions and mental retardation;
promiscuity, syphilis, and cancer (p. 527).8

This promotion of circumcision in the USA and
the UK emerged at the same time as a rekindled interest in
cliterodectomies and other experiments in sexual surgery.
Significantly, both male and female circumcision were
justified in terms of managing sexuality; yet, while
cliterodectomies soon declined, with other forms of female
genital mutilation eventually becoming a focus for domestic
and international outrage, male circumcision became
routinised in medical practice. In large part this was
attributable to the belief that male circumcision cured
masturbation, an accepted cause of degeneracy and insanity.
Circumcision allowed the Victorians to manage cultural
anxieties that had prompted an extensive campaign against
masturbation.78 Although this was a transatlantic
phenomenon it should be noted that anxieties ran higher in
the USA. As Hodges notes:

American doctors saw sexuality as more
of a threat to public health and social stability than did
their European contemporaries. The American medical
profession’s intense focus on sexuality was due in part
to economic pressures, the lack of a rigidly defined class
system, the rise of the middle class, the rise of
immigration, and other sources of social tension (p.
41).7

It was forcefully argued that circumcision
diminished the incidence of masturbation by removing or
preventing adhesions that would otherwise lead to the penis
being handled, and hence to self-abuse.8 Arguably, curing masturbation was
understood as the most important health benefit of
circumcision.8

Another key factor was the stigma created
through the linkage of those with an uncircumcised penis with
disease, pollution, and contagion. In professional and lay
publications of the time the foreskin is typically
characterised as ‘‘a harbour for
filth’’ (p. 769)9:

Indeed, anyone who has taken the
trouble to compare the dry, pink-parchment-like, cleanly
appearance of the glans of the circumcised with the sodden,
swollen, uncleanly structure which is frequently presented to
view when the prepuce of the uncircumcised is retracted
cannot fail to have been struck by the contrast. In the
latter case the space between the prepuce and the glans forms
the very beau ideal of a place for the implantation and
multiplication of bacteria of all kinds, the pent-up
secretions furnishing them with an efficient nutrient medium
in which to grow, the heat and moisture favoring their
development, and the excoriations which are so liable to
exist forming a ready means whereby their products may gain
access to the general circulation (p. 1870).10

This association helps to explain the shift
evident from the 1880s onwards towards cleanliness as a
justification for circumcision. In 1914 Abraham Wolbarst
argued for universal circumcision as a ‘‘sanitary
measure’’ (p. 92),11 concluding that ‘‘the
vast preponderance of modern scientific opinion on the
subject is strongly in favor of circumcision as a sanitary
measure and as a prophylactic against infection with venereal
disease’’ (p. 95).11 This shift occurred within a social
move that saw cleanliness identified with good morals, and
stigmatised the uncircumcised as not only unclean
but—by association—of questionable morals.12 In these terms Szasz locates
circumcision within his model of the
‘‘Therapeutic State’’, a political
system where ‘‘social controls are legitimised by
the ideology of health’’. In this model,
circumcision is emblematic of the ‘‘same
puritanical zeal for health-asvirtue that has fuelled other
typically American crowd madnesses, such as Prohibition, the
War on Drugs, and the Mental Health Movement’’
(pp. 140–1).12 Intimately
tied to these discourses of cleanliness and morality, during
this period circumcision became embedded as a signifier of
class and racial differences.13
By 1910 it was the most common operation in the USA,8 and a routine one in the UK.

Risky practices and the
construction of
‘‘harm’’
For all that they now seem spurious, the historical
justifications for neonatal male circumcision served to
obscure the violence inherent in the practice and the risks
it necessarily entailed. Although traditionally male
circumcision was characterised as a neutral and risk free
practice, more recently there has been a growing attention in
the ethical literature to questions of risk.1415 The
BMA’s new guidance thus reflects contemporary law and
practice by attaching greater weight to risks. As numerous
commentators have attested, throughout health care law, and
indeed wider social theory, risk is becoming a pervasive
theme.16 In particular, debates
about the law’s role in regulating violence against the
person are increasingly framed in terms of risk and
danger.17 However, although the
guidance foregrounds risk discourse, it also highlights the
contested nature of the risk–benefit analysis. At
various points evidence for the supposed beneficial effects
of circumcision is described as
‘‘equivocal’’ (pp. 2,4),1
‘‘inconclusive’’ (p. 4),1 ‘‘not convincingly
proven’’ (p. 5),1
‘‘contradictory’’ (p. 7),1 causing ‘‘significant
disagreement’’ (p. 7),1 lacking consensus1 and, ultimately,
‘‘insufficient’’ (p. 7).1 The BMA concludes that
‘‘evidence concerning the health benefit from
non-therapeutic circumcision is insufficient for this alone
to be justification’’ (p. 7).1 Yet, while this is coupled with a
recognition that there are inherent ‘‘medical and
psychological’’ (p. 5)1 risks in the procedure, the dominant
message is still that parental beliefs should be respected
despite not being grounded in claims to health benefits:

The medical harms or benefits have not
been unequivocally proven but there are clear risks of harm
if the procedure is done inexpertly. The Association has no
policy on these issues. Indeed it would be difficult to
formulate a policy in the absence of unambiguously clear and
consistent medical data on the implications of the
intervention. As a general rule, however, the BMA believes
that the parents should be entitled to make choices about how
best to promote their children’s interests, and it is
for society to decide what limits should be imposed on
parental choices (p. 3).1

A similar position has been defended in the
American literature by Benatar and Benatar,18 but it is interesting that the
BMA’s position seems more progressive than that of some
liberal commentators such as Margaret Brazier, who provides
the following summary:

The child suffers momentary pain.
Although medical opinion may not necessarily regard it as
positively beneficial, it is in no way medically harmful if
properly performed. The community as a whole regards it as a
decision for the infant’s parents (p. 350).19

Although the BMA’s recognition of both the
equivocal nature of the claimed benefits and the clear risks
of harm inherent in the procedure may be interpreted as a
more progressive position than some of the liberal
commentators, it nonetheless continues to construct male
circumcision as an expression of parental privilege. This
downplays both the pain experienced by the neonate,1820 and
the fact that, while complication rates from routine
circumcision are low, the chances of these complications
being mutilatory, infective, or haemorrhagic are high.2122
Indeed, complications are potentially catastrophic, since
death, gangrene, and total or partial amputation are known
adverse outcomes.23 Yet, the
guidance asserts that law legitimises parental choice since
nontherapeutic circumcision is ‘‘generally
accepted’’ to be lawful (p. 3).1 We suggest that legal support for this
view is somewhat tenuous, consisting of an obiter dicta
comment by Lord Templeman, a Law Commission report, and two
cases that tangentially refer to the legality of male
circumcision.2425 In Consent in the criminal
law, the Law Commission addressed the limits that law
should impose on the degree of injury to which a victim might
lawfully consent.26 It was
generally highly critical of the landmark House of
Lords’ decision in R. v. Brown, which
criminalised the infliction of injury during consensual
sado-masochistic sex. However, it endorsed an obiter
comment by Lord Templeman in that case, which lists male
circumcision as an example of a deliberately inflicted, but
apparently lawful, injury:

Surgery involves intentional violence
resulting in actual or sometimes serious bodily harm but
surgery is a lawful activity. Other activities carried on
with consent by or on behalf of the injured person have been
accepted as lawful notwithstanding that they involve actual
bodily harm or may cause serious bodily harm. Ritual
circumcision, tattooing, ear piercing and violent sports
including boxing are lawful activities (pp.
78–9).27

The Law Commission concluded that the lawfulness
of ritual male circumcision should be put beyond
doubt.28 To date, Parliament
has not legislated, which leaves open the question of whether
circumcision is lawful surgery or ‘‘proper
medical treatment’’ (p. 109).29 In the main reported case on
circumcision—Re J—the judges in the High
Court and Court of Appeal confined their observations to the
particular point of the dispute, which concerned parental
disagreement.24 J, a 5-year-old
boy, lived with his mother, a non-practising English
Christian. His father, a non-practising Turkish Muslim,
wanted J to be circumcised so as to identify him with his
father and confirm him as a Muslim. The court refused to
authorise surgery on the grounds that, since J was not being
brought up as a Muslim, he was unlikely to derive any social
or cultural benefit from circumcision. It held that, for
non-therapeutic circumcision, the consent of both parents
would be desirable. However, neither court questioned the
assumption that, where parents agree, they should be able to
make this decision free of scrutiny.

The Court of Appeal recently followed this
approach in the case of Re S, which concerned a
similar dispute.25 A mother
applied to the court for her 8-year-old son to be circumcised
as a member of the Islamic faith, an application opposed by
the child’s father. Here, the deciding factors were
that the child had been brought up in a predominantly Jain
household and the mother’s primary motivation for
seeking her son’s circumcision seemed to be that her
new husband was Muslim.

We suggest that a partial explanation of the
law’s muted response to the risks of infant male
circumcision lies in the conceptually fluid nature of
‘‘harm’’. As Carol Smart notes,
‘‘harm’’ is not ‘‘a
transcendental notion which is automatically knowable and
recognisable at any moment in history by any member of a
culture’’ (p. 392).30 This conceptual fluidity allows
health care law and ethical guidance differentially to
construct harms, attaching weight to some, while downplaying
others. A key factor in determining how harm is constructed
is rooted in understandings of the body that is harmed. For
instance, in general, law tends to construct the male body as
invulnerable to harm.31 By
contrast, the female body tends to be characterised by
vulnerability, which leaves it more open to medical
intervention and management. In relation to children, David
Evans notes that modern societies typically construct them as
objects of grave concern.32
However, we argue that medicolegal responses to harms
suffered by children are vexed, and
‘‘concern’’ does not necessarily
translate into sensitivity to harms inflicted on them. Since
children function as the repository of various contradictory
meanings, concern often speaks more to the implications for
adults. For instance, other authors, such as Roger Short in
his JME article, note that a key motivation for circumcision
is often a father’s desire that his son physically
resembles him.433–35 The problem of
disentangling familial interests compounds the difficulty in
recognising harm to children, such as child abuse, which
occurs within the private sphere of the family. In the case
of circumcision, moreover, this obstacle is compounded by the
way in which religious or cultural practices sanctify the
practice of male circumcision.

Additional factors militating against
recognition of harm include the age and gender of the
child—factors that we argue are crucial in the infant
male circumcision debate. Since infants are unable to
articulate their harms, they can more easily be ignored, or
at least it is more readily accepted that parents are best
placed to articulate their interests. More significantly, we
argue that the pain and risks to boy infants are downplayed
in part because of their place as a rite of passage and
signifier of masculinity.

Masculinity and
pain
Within public and legal imaginations there is a dominant
understanding of the male body as invulnerable and safe.
Cynthia Daniels has explored this in the context of the
denial of vulnerability and risk:

In Western industrial cultures, notions
of masculinity have been historically associated with the
denial of men’s physical vulnerabilities and bodily
needs and the projection of these characteristics onto the
maternal. Men’s denial (or dismissal) of bodily risks
has been a hallmark of masculine status … (p.
582).36

Since the time of ancient Greece, willingness to
bodily sacrifice—most notably in warfare—has been
one side of a ‘‘covenant’’ that
affords men fuller participation in the body politic. Today,
as in the past, warfare is met by the sacrifices/ risks of
employment, where reproductive and other health hazards are
routinely denied or minimised, with the
‘‘reward’’ of higher levels of
social, economic, and political participation. This is, of
course, shaped by racial and class, as well as gender,
differences.37

The interplay of sacrifice and masculinity is
complicated by the relationship between masculinity and pain.
Although pain may be understood as an integral part of the
relationship between sacrifice and masculinity, it is related
in a wider sense to ideas of masculinity. In her analysis of
circumcision, Sarah Waldeck mobilises Timothy Beneke’s
concept of ‘‘compulsive
masculinity’’—the ‘‘need to
relate to, and at times create, stress or distress as a means
of both proving manhood and conferring on boys and men
superiority over women and other men’’ (p.
57).38 This is relevant in two
ways. First, circumcision dovetails with deeply embedded
associations between the endurance of pain/distress and
proving and defining masculinity. ‘‘It’ll
make a man of you’’ is articulated in many
different ways and in many different locations. This aspect
of masculinity is imbricated in a spectrum of
‘‘initiation’’ rites, from early
moments of parental blindness to the risks of harm (such as
in the case of routine circumcision) through to the tolerance
of the homo(anti)sociality of college and military hazing,
and ultimately to aspects of our responses to warfare. These
arguments may also help to explain why the Law Commission and
judges in R. v. Brown27
grouped nontherapeutic, non-consensual neonatal circumcision
with other activities that are potentially harmful to a
consenting (male) adult, such as ‘‘manly
diversions’’ and ‘‘rough but innocent
horse-play’’ (p. 97).39 On this understanding, circumcision
is privileged as an early moment that associates masculinity
with endurance and pain. Secondly, such cultural associations
may well contribute towards the failure to provide adequate
pain control for this procedure. Although a wealth of
literature highlights the need for pain relief during
circumcision,40 leading the
American Academy of Pediatrics to recommend the use of
analgesia,5 an
‘‘astonishingly large’’ percentage of
infants are circumcised without efficient pain
control.35 It was estimated in
1999 that 45% of circumcisions occurred without
anaesthetic.41 However, a
report from the preceding year suggests lower levels of
anaesthetic use and, in line with circumcision itself,
highlights regional variation:

The debate over whether or not
circumcision should be performed seemed to overshadow the
fact that between 64 percent to 96 percent of the time babies
are circumcised without anesthesia in some areas of North
America (p. 20).42

It is also worth noting that Benatar and Benatar
describe the continued failure to use analgesia as a matter
of ‘‘great moral concern’’ (p.
43).18 The masculinity/pain
nexus may thus be implicated in the continuing practice of
routine neonatal circumcision. The BMA’s guidance
refers to anaesthesia only in the context of consent and
knowledge of the associated risks, and the need to provide
full resuscitation facilities if general anaesthesia is
used.1 Neither can be read as a
statement requiring anaesthesia to be used to minimise pain
and discomfort.

Additionally, we would argue that feminist
critiques of health care, which have foregrounded harms
specific to women, may have contributed to a marginalisation
of threats to the male body, a process facilitated by its
construction as impermeable.3743 Thus, as Smart notes, boys
were seemingly ‘‘not constituted as part of the
historical story of child sexual abuse’’ (p.
395).30 This also fits with the
tendency of Anglo- American legal commentators to minimise
harms inflicted on boys while exacerbating risks to girls.
Certainly this may play some part in explaining the very
different stance of both the BMA and English law regarding
female circumcision.

Ethicolegal responses to female and
male circumcision
The differential treatment of male and female genital
mutilation is, we would argue, important in understanding the
nature of the current debate. This dichotomy is perpetuated
by the BMA’s practice of issuing separate guidance on
the two practices. We suggest that this radical separation
partially explains why male circumcision has attracted little
medicolegal discussion in comparison with female
circumcision, which has ‘‘captivated the popular
press, the legal academy and the political
arena’’ (p. 725).44
Bioethical commentary has been uniformly hostile to female
circumcision,45–49 a
critique reflected both in the terminology employed and in
Anglo-American laws. Both the UK Female Genital Mutilation
Act 2003 and the US Federal Prohibition of Female Genital
Mutilation Act 1997 are notable for their refusal to
countenance any circumstances in which a competent minor girl
(or even adult woman in the UK) could choose to be
circumcised. Nor are parents permitted to justify the
practice on religious or cultural grounds,4450 or,
in the UK, to take their child abroad for this
procedure.51 By contrast with
such extraordinarily punitive laws, the absence of any
statutory regulation governing the practice of male
circumcision is striking.8

In general, legal commentators have simply
assumed that the male/female circumcision binary is
self-evident.52 Others construe
female circumcision as a barbaric violation of human rights,
in comparison with which the less radical intervention of
male circumcision may be characterised as a legitimate
parental choice.53 Thus,
Coleman argues that any analogy between the two practices

can be and has been rejected as
specious and disingenuous [since] traditional forms of FGM
[female genital mutilation] are as different from male
circumcision in terms of procedures, physical ramifications
and motivations as ear piercing is to a penilectomy (p.
736).44

To such arguments we would make three
rejoinders. First, it is crucial to avoid essentialism; the
different types of harm occasioned though the range of
practices covered by the terms
‘‘circumcision’’ must be unpacked
rather than being represented as ‘‘a unitary
whole’’ (p. 151).48
Arguably, the less severe forms of female circumcision, such
as ritual/ symbolic circumcision (involving the drawing of
blood but no permanent tissue damage or scarring)54 or sunna (the cutting away of the
prepuce of the hood of the clitoris) may be no more
severe—or even less severe—than conventional male
circumcision, which involves the removal of the foreskin or
prepuce covering the glans of the penis.55 Clearly the more extreme forms of
female circumcision—excision (about 80% of cases;
involves the removal of the clitoris and all or part of the
labia minor) and infibulation (about 15% of cases; involves
removal of clitoris, labia minor and at least twothirds of
the labia majora, which are then stitched together leaving
only a small opening for the passage of urine and menstrual
blood)—are radically different in kind from most
instances of male circumcision. However, it is worth noting
the range of variation in the practice witnessed in other
cultures.55

Such arguments are obfuscated within the BMA
guidance, as is particularly evident in the
Association’s guidance for female genital mutilation.
Referring to the less severe practices, the guidance notes
that:

Other mutilations include pricking,
piercing … and introduction of … herbs into the
vagina … The age at which such procedures are carried
out varies from a few days old to just before marriage.

All forms are mutilating and carry serious
health risks. Female genital mutilation is not comparable
with male circumcision, over which there is no consensus
about the health risks and potential benefits (p. 1).56 A further problematic distinction
that also deploys a particular definition of the word
‘‘mutilation’’ is contained in the
Law Commission’s report:

It is generally accepted that the
removal of the foreskin of the penis has little if any effect
on a man’s ability to enjoy sexual intercourse, and
this act is not, therefore, regarded as a mutilation (para
9.2).26

Nevertheless, if variations in the procedures
render a simple opposition between male and female
circumcision problematic, other commentators have suggested
that a more compelling distinction lies in the justifications
of the practice. On this view the patriarchal underpinnings
of female circumcision, which undermine the right of girls
and women to ‘‘sexual and corporal
integrity’’,57
accounts for much of the revulsion it provokes. Yet we are
uneasy with the view that male circumcision is less
problematic because it cannot be located in some grand theory
of oppression. As our brief outline of its historical
emergence highlights, the motivations for and justification
of male circumcision are more complex than is often allowed.
Like female circumcision, including practices in the UK and
the USA into the early twentieth century, it has been used to
manage sexuality, and needs to be located within a framework
that recognises how it normalises and privileges the male
body. In light of this, feminist disinterest in, or
acceptance of, the procedure may well be short sighted.

Finally, we would reiterate that artificially
contrasting the practices in this way serves only to deflect
attention from the more fundamental issue, which has also
been obscured in English law, of whether we should be
subjecting any children to medically approved procedures
involving the excision of healthy tissue. In this regard it
is worth remembering that definitions of the prepuce as
merely a fold of skin covering the glans have been condemned
as grossly simplistic. Rather the prepuce is a complex
structure that has a range of significant sexological
functions playing ‘‘an important role in the
mechanical functioning of the penis during sexual acts, such
as penetrative intercourse and masturbation’’ (p.
89).58

Given that no clear dichotomy necessarily exists
between female and male circumcision, in terms of either the
injury inflicted or the motivation for it, we question the
lack of will on the part of the medical profession, both
institutionally and at the level of some individual
practitioners, to challenge the acceptability of the
practice. In this respect, attitudes to male circumcision may
usefully be contrasted with other areas of health care law,
but it is at this point that the arguments of many
commentators are seriously flawed, since comparisons chosen
often involve adult patients capable of consenting to the
procedure. For instance, Benatar and Benatar draw analogies
between male circumcision and ‘‘other surgical
procedures such as breast reduction, liposuction and
rhinoplasty’’, suggesting that, like circumcision
of infants, such surgeries are not necessarily
‘‘disfiguring’’ (p. 36).18 Similar comparisons with elective
procedures freely chosen by adults underpin the reasoning of
both the Law Commission26 and
the majority judgments in R. v. Brown.27 In our view, more appropriate
comparisons that explicitly raise the ethics and legality of
exposing infants to the risk of harm would be the enrolment
of children in clinical research59 or vaccination programmes,60 where they are clearly vulnerable to
being used for the benefit of others. By contrast with infant
male circumcision, in these contexts there is extensive
debate about the ethics of consenting to these procedures on
behalf of young children, notwithstanding the much greater
possibility of benefit to the individual child or other
children. The lack of tangible individual or societal
benefits accompanying circumcision, coupled with the known
risks, makes it surprising that the routine nature of this
practice has escaped similar medicolegal controversy.
Law’s failure to scrutinise adequately the risks
inherent in this practice is particularly indefensible, since
tort actions in the USA have forced law to confront and
quantify the damage that has resulted from negligently
performed circumcisions.861–63

CONCLUSIONS
In conclusion, we suggest that two elements characterise the
history of non-therapeutic male circumcision: evangelism and
the diversity of justifications that evangelical champions of
circumcision have mobilised. Although justifications have
shifted, they have generally relied on an enduring
association between the uncircumcised penis and disease and
pollution.64–66

Current disputed justifications follow this
trend and centre on circumcision as a prophylactic against
sexually transmitted disease, including HIV. An assessment of
the merits of the scientific research is not our primary
concern. In this regard, however, it is worth emphasising
Benatar and Benatar’s conclusion, following their
review of the literature, that none of the scientific
evidence ‘‘is anywhere near
conclusive’’ (p. 42).18 Yet, for some, it is the prevention
of HIV/AIDS that legitimates calls for (global) routine male
circumcision. In this vein, Roger Short concludes his piece
in the JME in a manner consonant with the earlier evangelism.
He focuses on circumcision status and the transmission of
HIV:

If we believe in evidence-based
medicine, then there can be no debate about male
circumcision; it has become a desirable option for the whole
world. Paradoxically, this simple procedure is a life saver;
it can also bring about major improvements to both male and
female reproductive health. Rather than condemning it, we in
the developed world have a duty to develop better procedures
that are neither physically cruel nor potentially dangerous,
so that male circumcision can take its rightful place as the
kindest cut of all (p. 241).4

Such evangelical commitment to circumcision is
problematic in a number of respects. First, it ignores the
complexity of the existing research and fails to question the
utility of global generalisations from a limited number of
studies. In terms of sexual health more generally, it fails
to address the consequences of claiming circumcision as an
effective prophylactic against HIV/AIDS on the transmission
of other sexually transmitted diseases. It should be noted
that, notwithstanding the high rates of routine circumcision
in the USA since at least the 1950s, this country nonetheless
has the highest level of sexually transmitted disease and HIV
infection in the developed world.67 In this regard, in a recent study of
male circumcision and the risk of HIV and other sexually
transmitted infections in India it was recognised that,
although circumcised men may have a lower risk of HIV
infection, this did not protect them from herpes, syphilis,
or gonorrhoea.

This promotion of circumcision as a prophylactic
raises wider questions about subjecting children to invasive
procedures on the grounds of public health. It is generally
accepted that medical intervention is ethically permissible
only in response to verifiable disease, deformity, or injury.
In addition, the therapeutic intervention must be reasonably
believed to result in a net benefit to the patient. While
prophylactic interventions are obvious exceptions to this
principle, they are justifiable only where deemed to be in
the individual’s best interests or where aimed at
avoiding a significant public health disaster. It has been
convincingly agued in this journal that, when a procedure is
to be performed on children who are unable to give informed
consent, a higher level of scrutiny is demanded. This
requires consideration of whether effective and conservative
alternative interventions could achieve the intended
outcome.23 This position
underpins the BMA’s guidance, which states that it
would be unethical to circumcise where medical research has
shown other techniques to be at least as effective and less
invasive.1 Obviously, the
provision of condoms and improved sex education are less
invasive and more appropriate means of achieving the desired
outcome. Although cultural attitudes may make this difficult
to achieve in certain communities, public health should not
focus on what is attainable in these communities
(particularly where this is the most invasive option) for the
construction of a global public health strategy.3

Circumcision has long existed as a procedure in
need of a justification. The most recent focus on sexually
transmitted disease—notably with regard to
HIV/AIDS—needs to be assessed in light of this. It is
our contention that no convincing medical justification for
this practice exists. In the absence of unequivocal evidence
of medical benefit, we would argue that it is ethically
inappropriate to subject a child to the acknowledged risks of
infant male circumcision. Having reached this position, the
emerging consensus, whereby parental choice holds sway,
appears ethically indefensible; nor, given emerging
principles and practice governing medical decision making
involving children, is there any compelling legal authority
for the view that it is lawful.

Rather, in contrast to female circumcision,
whose advocates would also point to justifications rooted in
culture and cleanliness, law has failed to confront the risks
that male circumcision poses to the infant body or to contest
the nexus between pain and masculinity. The promulgation of
new professional guidance represented an important
opportunity to signify that excision of any healthy body
parts should neither be left to parental choice nor dependent
on the sex of the child. Ultimately, however, the BMA
guidelines avoid the issues that should now be at the heart
of this debate and represent a missed opportunity.